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A Law Professor's Case In Support Of Justice Kavanaugh


We are going to spend a bit of time this weekend trying to understand the fallout from this intense and emotional battle around Brett Kavanaugh's Supreme Court nomination and confirmation. Later, we're going to hear from one of Christine Blasey Ford's attorneys about what this episode has meant to her - professor Ford, of course, being the woman who testified that Judge Kavanaugh assaulted her years ago. But we're also going to try to examine some of the divisions that this whole process has laid bare, including in the legal community.

In a remarkable development, retired Supreme Court Justice John Paul Stevens said publicly that Kavanaugh is not fit for the high court. Earlier this week, more than 2,400 law professors urged the Senate in a letter not to confirm Judge Kavanaugh. Needless to say, others support and defend him. UCLA law professor Eugene Volokh is one of them. He refused to sign the letter. He mentioned that he clerked with Judge Kavanaugh previously and socialized occasionally with him. And he is with us now via Skype.

Professor Volokh, thank you so much for joining us.

EUGENE VOLOKH: Very much my pleasure. Thanks for having me.

MARTIN: First of all, I just wanted to ask how you reacted when you saw the letter. I understand that a law professor was circulating this letter. I just wondered what your reaction was.

VOLOKH: Well, I sort of imagined, how would I have acted if I were publicly accused on national, international television of extraordinarily serious crimes and if I was innocent? And the letter was based on the assumption that Judge Kavanaugh's reaction was bad whether or not he was innocent. I can't imagine that I would completely keep my cool. I don't think most people would. Maybe a few could. But I think a lot of people would be extraordinarily angry. They would feel kind of publicly humiliated. And even somebody with a reputation for calm and judiciousness, as Judge Kavanaugh has developed in his many years now in the D.C. Circuit - it could easily slip. I think that's just human nature.

MARTIN: One of the reasons that we called into you is that you wrote a blog post that caught our attention. And you mentioned that you clerked at the same time as Judge Kavanaugh, that you socialized occasionally with him. Do you think that your - the fact that you know him plays some role in how you respond to this?

VOLOKH: You know, I expect it probably does in some measure. We're not terribly close. We just - I don't think we've seen each other for quite a while, and we didn't see each other that often, even back then socially. But am I influenced by that? Sure. I'm a human being like he's a human being, like all of us are.

MARTIN: And, as you know, other human beings, many of them women, are reacting very differently to this. They are bringing forward experiences that they have had where they have been assaulted physically in some cases, threatened with assault. And their reactions to it are also very important then. One of the reasons we called you is that we're interested in, as I said earlier, kind of the fallout from this and the kinds of divisions that have been laid bare in this. Do you think that people's personal reactions are guiding that response to this? Or do you think it's something else, even among your colleagues?

VOLOKH: I'm quite sure that personal reactions are guiding lots of people on this just because that is human nature. I can't speak to any particular person, but it's unsurprising that this would be so, and I don't think it should be condemned. But, again, if you're asking somebody to maintain complete composure, I think you're expecting something that is too much to expect of normal people.

Occasionally, again, you could have someone who does keep his cool under such extraordinary circumstances, but I think that's the exception rather than the rule. And I think if you're asking about judicial temperament, a much better guide for judicial temperament is how Judge Kavanaugh behaved in about 10 years, more than 10 years on the D.C. Circuit bench. And everybody seems to say that his temperament has been excellent there.

MARTIN: Except, professor, you know, defendants are accused of terrible things all the time that they may or may not have done, and they are not allowed to behave in this way. I mean, a criminal defendant who presented himself in court or herself, who is accused of something terrible that he or she did not do would not be allowed to scream at people, would not be allowed to be patronizing and condescending toward the judge or toward other parties.

VOLOKH: Well, if I were a member of a jury, and somebody was on the stand accused of - could be a sex crime, could be anything else - and I saw him reacting in anger when questioned by the prosecutor and interrupting, say, the prosecutor, I'd like to think I wouldn't hold it against him. Of course, I'd look at the evidence. I'd want to know if he's guilty. But I would say if he behaves angrily, that anger is not inconsistent with innocence, and it's not a sign of bad character. It's a sign of someone who is reacting to a very, very serious accusation.

MARTIN: Let me go back to the question of the legal community. Do you agree that this is an episode - I don't know what else to call it - I don't mean to minimize that by calling it that - a moment that has riven your profession? One of the things you noted in your blog post is that a lot of people disagree with you - people who you respect. They disagree - you disagree with other people whom you respect and that you've had a lively dialogue about it. Has this been a notable moment for your profession? And why do you think that is?

VOLOKH: Well, yes, of course it's notable. This is something that's very high-profile about a very important matter. People sharply disagree on this. Of course, the legal academy is overwhelmingly liberal. And, as you pointed out, where one is coming from colors one's perception, and just as conservatives are predisposed to respond one way to such things, liberals another way, so it's unsurprising that there would be a lot of heat coming from kind of, in part, one's political reactions. But also just even people who are not particularly partisan feel very strongly about this because it's in the news and because it is about somebody who, if confirmed, but even if not confirmed, will be a very important figure in legal life for decades to come.

MARTIN: That is Eugene Volokh. He is the Gary T. Schwartz Professor of Law at the UCLA School of Law, and he's the co-founder of "The Volokh Conspiracy" blog, which is hosted at Reason.

Professor Volokh, thanks so much for talking to us.

VOLOKH: And thank you so much for having me. Transcript provided by NPR, Copyright NPR.